Ramson and Ramson

[2014] FamCA 225

FAMILY COURT OF AUSTRALIA

RAMSON & RAMSON [2014] FamCA 225

FAMILY LAW – PRACTICE AND PROCEDURE – Application by a non-party to discharge an order affecting them in respect of property Orders previously made ex parte – whether the Court has power to discharge an order in respect of an application of a non-party

Family Law Rules 2004 (Cth) rr 1.09, 1.10

APPLICANT: Ms Ramson

RESPONDENT: Mr Ramson

FILE NUMBER: PAC 380 of 2012

DATE DELIVERED: 7 April 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 24 March 2014

REPRESENTATION

APPLICANT: Self-represented

RESPONDENT: No appearance

SOLICITOR FOR AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED: Gadens Lawyers

Orders

1. Order 4 of Orders made on 1 February 2012 be discharged, and these Reasons for Judgment be published.

2. Any outstanding application be dismissed.

3. The matter be removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ramson & Ramson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 380 of 2012

Ms Ramson

Applicant

And

Mr Ramson

Respondent

REASONS FOR JUDGMENT

1. In February 2012, the wife commenced proceedings for orders in relation to parenting for two children and property matters.  At that time the husband was overseas with the two children of the relationship, who he had removed from Australia.  The husband also had withdrawn a large sum of money from two ANZ Bank accounts without the wife’s knowledge or consent.

2. Urgent ex parte Orders were made by Collier J on 1 February 2012 restraining the husband from withdrawing funds from the ANZ Bank and restraining the bank from permitting the husband to withdraw funds from two accounts.

3. The husband has not returned to Australia and it is not known where he and the children are living.

4. Property Orders were made on 16 March 2012, including an order that the wife be appointed sole trustee to sell the former family home and distribute the sale proceeds.

5. The Orders of 1 February 2012 not only restrain the husband from withdrawing funds from the bank accounts in his name but restrain the ANZ Bank from allowing any withdrawal of any funds from the bank accounts.  Order 4, in particular, has prevented the fees and charges payable on the home loan in relation to the family home from being withdrawn from that account.  The type of loan provided to the husband and the wife involves the transaction by which the costs and expenses are applied to the loan to be accounted for as a withdrawal.

6. The bank, which is not a party to the proceedings, seeks that the Order which prohibits any withdrawal from the account be discharged so that the costs and expenses associated with the loan may be withdrawn in accordance with the terms of the loan.

7. There is no procedure for a non-party to bring an application.

8. Rule 1.09 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:

   If the court is satisfied that:

   (a)a legislative provision does not provide a practice or procedure; or

   (b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

   it may make such orders as it considers necessary.

9. The Court also has general powers under rule 1.10, which provides that:

   (1)Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

   (2) When making an order, the court may:

   (a) impose terms and conditions;

   (b) make a consequential order;

   (c) specify the consequence of failure to comply with the order; and

   (d) take into account whether a party has complied with a pre-action procedure.

10. The wife agrees with the particular Order being discharged as sought by the bank.  She says that her interests in preventing the husband from making withdrawals from the ANZ Bank accounts are protected by other Orders made on 1 February 2012.  Those other Orders, which are to remain, restrain the husband from withdrawing any funds from bank accounts in his name or with any third party including two specified ANZ accounts and restrain the ANZ Bank from facilitating or allowing any withdrawal of funds by the husband from bank accounts in his name, either solely or jointly with another party, including the two nominated accounts.

11. The purpose of the discharge of Order 4 is solely to allow the Bank itself to withdraw funds to give effect to the terms of the mortgage loan.

12. The husband has not been served as his whereabouts are unknown.  The bank and the wife both ask that I discharge Order 4 to enable the bank to carry out transactions on the loan account in accordance with the terms and conditions of the mortgage.

13. For the reasons given, it is appropriate to make the order sought.

14. There are no longer matters before the Court for determination and so an order will also be made to finalise the matter and remove it from the active pending cases list.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 April 2014.

Associate:                            

Date:    7 April 2014